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«UNITED STATES OF AMERICA, No. 11-10124 Plaintiff-Appellee, D.C. No. v. 1:08-cr-00224- OWW-11 GARY L. ERMOIAN, Defendant-Appellant. UNITED STATES OF ...»

-- [ Page 1 ] --

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-10124

Plaintiff-Appellee,

D.C. No.

v. 1:08-cr-00224-

OWW-11

GARY L. ERMOIAN,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 11-10388

Plaintiff-Appellee,

D.C. No.

v. 1:08-cr-00224- OWW-12

STEPHEN JOHN JOHNSON,

Defendant-Appellant. OPINION Appeal from the United States District Court for the Eastern District of California Oliver W. Wanger, Senior District Judge, Presiding Argued and Submitted April 18, 2013—San Francisco, California Filed August 14, 2013

2 UNITED STATES V. ERMOIAN

Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain, and N. Randy Smith, Circuit Judges.

Opinion by Judge O’Scannlain SUMMARY* Criminal Law Reversing convictions and remanding for entry of judgments of acquittal, the panel held that a criminal investigation is not an “official proceeding” under the federal statute criminalizing obstruction of justice, 18 U.S.C. § 1512.

COUNSEL

John Balazs, Sacramento, CA, argued the cause and filed a brief for defendant-appellant Gary L. Ermoian.

Jerald Brainin, Los Angeles, CA, argued the cause and filed a brief for defendant-appellant Stephen J. Johnson.

Mark E. Cullers and Laurel J. Montoya, Assistant United States Attorneys, Fresno, CA, argued the cause and filed a brief for plaintiff-appellee United States of America. With them on the brief were Benjamin J. Wagner, United States Attorney, Fresno, CA, and Camil A. Skipper, Appellate Chief, Fresno, CA.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

UNITED STATES V. ERMOIAN 3

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether an FBI investigation qualifies as an “official proceeding” under a federal statute criminalizing obstruction of justice.

I A The facts of this case read like an episode of the fictional television drama Sons of Anarchy.1 Sometime in 2006, the Central Valley Gang Impact Task Force (“CVGIT”)—a United States Department of Justice (“DOJ”)-funded group tasked with coordinating local law enforcement efforts to eliminate gang-related crimes in California’s Central Valley—learned that the Hells Angels motorcycle gang was attempting to establish a chapter in Modesto, California.2 Hoping to disrupt the formation of this gang chapter, the CVGIT opened an investigation into several known associates of the Hells Angels gang in the Modesto area, 1 Sons of Anarchy is a television drama series that runs on the cable channel FX. It documents the legal and illegal activities of a fictional outlaw motorcycle club operating in a town in California’s Central Valley.

In the show, the club’s headquarters are located in a clubhouse adjacent to an auto mechanic shop.

2 The Federal Bureau of Investigation (“FBI”) was also a memberagency of the CVGIT. Because FBI Agent Nathan Elias was the lead member of the CVGIT task force investigating the Holloways, we—like the parties—will refer to the CVGIT’s investigation as an FBI investigation.

4 UNITED STATES V. ERMOIAN including Robert Holloway and his son Brent Holloway,3 the Road Dog Cycle Shop (which they co-owned), and members of the Merced Chapter of the Hells Angels gang who were affiliated with Road Dog Cycle.

Through information gleaned from earlier investigations, the CVGIT was aware that Road Dog Cycle was dealing in stolen motorcycles and motorcycle parts. The task force also suspected that some individuals associated with law enforcement were leaking information to the Holloways and were thus facilitating their criminal enterprise.

To catch the Holloways engaging in illegal activity, the CVGIT first sought to prevent any further leaks of confidential law enforcement information. Thus, in an effort to ferret out some of Robert’s law enforcement sources, the CVGIT created a “Gang Intelligence Bulletin,” which it distributed to local law enforcement in September 2007. The bulletin purported to contain “confidential information” that was “intended for law enforcement personnel only.” But in actuality, the information in the bulletin was “watered down” to avoid leaks of sensitive information that could truly jeopardize the CVGIT’s investigation into the Holloways and Road Dog Cycle. In substance, the bulletin described surveillance of the annual summer “Burn-Out Party” held at Road Dog Cycle and named the different outlaw motorcycle gangs seen in attendance. After circulating the bulletin, the CVGIT monitored wiretaps it had placed on Robert’s phones, hoping to ensnare the law enforcement officers leaking information.

3 To avoid confusion, we refer to Robert and Brent Holloway by their first names.

UNITED STATES V. ERMOIAN 5 The defendants in this case, Gary L. Ermoian and Stephen J. Johnson, were charged with obstructing justice based upon their activities during a chain of events set into motion by the bulletin’s distribution. The morning after the Gang Intelligence Bulletin was distributed to law enforcement personnel, David A. Swanson4—a Deputy Sheriff and bailiff in the county courthouse—placed a 40.8 second phone call from his work telephone to Ermoian. At the time, Ermoian—one of Robert’s close personal friends—was employed as a part-time private investigator for Robert’s attorney, Kirk McAllister. Swanson informed Ermoian that he “saw some photos” of the Burn-Out Party and that Ermoian should warn Robert to “watch his back.” The wiretap on Robert’s phone recorded a flurry of activity immediately after Swanson contacted Ermoian. Just minutes after receiving the call from Swanson, Ermoian called Robert to share Swanson’s tip. Given Swanson’s position in the courthouse and his access to information about pending warrant applications, Ermoian was concerned that Swanson’s veiled warning that Robert should “watch his back” might indicate that police were coming with a search warrant. He thus advised Robert to “take a look around the shop [to] see if you see anything....” Heeding Ermoian’s advice, Robert talked to Brent and other Road Dog Cycle employees, checked the store for “questionable” motorcycle parts, and put one questionable item “in the alley [behind the store] with a tag on it.” 4 Although Swanson was charged with obstruction of justice and was tried along with defendants Ermoian and Johnson, he was acquitted of the charge. Thus, he is not a party to this appeal.





6 UNITED STATES V. ERMOIAN Later that same day, Ermoian and Robert both received several additional phone calls warning about a pending investigation into Road Dog Cycle from defendant Johnson.

Johnson was not a member or close affiliate of the Hells Angels motorcycle gang, but he had become acquainted with Robert, Ermoian, and McAllister through a business he owned and operated, which subcontracted with law enforcement to perform canine sniff searches. Starting sometime in 2006, Robert and his attorney McAllister had hired Johnson on a few occasions to perform preventative canine searches of Road Dog Cycle so that they could locate and dispose of any drugs or other contraband found on the premises. Shortly after Ermoian received Swanson’s tip, McAllister requested that Johnson perform a preventative search of Road Dog Cycle in anticipation of the pending law enforcement raid. Upon learning that another source suspected a raid, Johnson informed both Ermoian and Robert that he had “overheard” a conversation at the DOJ facility where he was contracted to conduct periodic canine searches about an impending Bureau of Alcohol, Tobacco, and Firearms (“ATF”)-DOJ investigation into Road Dog Cycle.

With two sources suggesting that a police raid was imminent, Robert, Ermoian, Johnson, and other affiliates of Road Dog Cycle flew into action. Based on the wiretap, the CVGIT learned that they conducted counter-surveillance, searching for undercover officers near the shop. They warned the local chapter of Hells Angels to “make sure that [the] crew is safe” because they were in “jeopardy” from law enforcement crackdowns. They attempted to ferret out informants within the motorcycle gang. And they generally tried to “make sure that all [their] ducks [we]re in a row” and made an effort to be “careful about what c[ame] in and out” of the shop.

UNITED STATES V. ERMOIAN 7 Having discovered that Ermoian and Johnson were related to the law enforcement information leaks, the CVGIT did not move immediately to arrest them. Instead, to avoid tipping off the other suspects to the true scope of the investigation, it postponed action and continued to dig into the illegal activities of Robert and Road Dog Cycle, as they were the primary targets of the investigation. It wasn’t until June 2008, when the CVGIT’s investigation into the Holloways was coming to a close, that FBI Agent Nathan Elias—the lead member of the CVGIT for the Holloway case—first went to interview Ermoian about the Holloway investigation.

Johnson was first interviewed about his involvement with Holloway a month later. Subsequently, both Ermoian and Johnson were arrested on charges of conspiracy to obstruct justice.

B

On May 28, 2009, a federal grand jury returned an indictment against twelve defendants associated with Road Dog Cycle, charging several violations of racketeering laws and various related offenses. In the indictment, defendants Ermoian and Johnson were charged with conspiracy to “corruptly obstruct, influence, and impede an official proceeding, to wit, a law enforcement investigation conducted by the Federal Bureau of Investigation” in violation of 18 U.S.C. § 1512(c)(2), (k). Defendants Ermoian and Johnson, and the charges against them, were severed from the other defendants and charges in the indictment. The remaining defendants pleaded guilty to various charges, and only Ermoian and Johnson proceeded to trial.

Throughout the trial process, Ermoian and Johnson challenged the legal validity of the obstruction of justice 8 UNITED STATES V. ERMOIAN charge. Specifically, and relevant to this appeal, the defendants filed a pre-trial motion to dismiss the indictment, an objection to the jury instructions and a motion for acquittal during trial, as well as a post-trial motion for acquittal, at all times asserting the same general argument: they could not be convicted under the obstruction of justice statute, § 1512, because their alleged obstruction of an FBI investigation did not qualify as obstruction of an “official proceeding” under the statute. The district court rejected this argument each time, concluding that the term “official proceeding” as used in the statute should be read broadly to include an “FBI investigation.” The jury convicted Ermoian and Johnson of obstructing justice. They timely appealed.

–  –  –

Ermoian and Johnson raise various arguments challenging their conviction on appeal, but they focus primarily on one issue: Did the district court err when it determined that an FBI investigation qualifies as an “official proceeding” under the statute criminalizing obstruction of justice?

Our circuit has never before addressed the meaning of the term “official proceeding” as used in the obstruction of justice statute at 18 U.S.C. § 1512. But the dearth of Ninth Circuit case law on the question does not leave us without a point of reference. We begin, as any effort to interpret a statute must, with the text. The “first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). Whether the meaning of a statute is plain “is UNITED STATES V. ERMOIAN 9 determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341. If the statute’s meaning can be resolved by reference to the statutory text such that “the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent,’” our inquiry is complete. Id. at 340 (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240 (1989)).

A

The statute under which the defendants were convicted, 18 U.S.C. § 1512(c)(2), prohibits “corruptly... obstruct[ing], influenc[ing], or imped[ing] any official proceeding, or attempt[ing] to do so.” Id. (emphasis added).

Section 1515(a)(1) defines an official proceeding as:

–  –  –

(D) a proceeding involving the business of insurance whose activities affect interstate commerce before any insurance regulatory 10 UNITED STATES V. ERMOIAN official or agency or any agent or examiner appointed by such official or agency to examine the affairs of any person engaged in the business of insurance whose activities affect interstate commerce[.] 18 U.S.C. § 1515(a)(1). Of these definitions, the parties agree that only one might cover an FBI investigation—“a proceeding before a Federal Government agency which is authorized by law.” Id. § 1515(a)(1)(C).

1 As used in the statute, the definition of the phrase “official proceeding” depends heavily on the meaning of the word “proceeding.” That word is used—somewhat circularly—in each of the definitions for an “official proceeding” and is key to the phrase’s meaning. See id.



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